Transitional Iraqi assembly a necessary compromise

A rush to either elected government or constitution would have made for a shaky democracy, write Jolyon Ford and Helen Irving.

In a rare about-face, the Bush Administration has had a change of heart on the process of transition to a democratic regime in Iraq. Until last weekend, President George Bush had maintained that a new Iraqi constitution should be written first, followed by elections for a democratic government.

Members of the US-appointed Iraqi Governing Council were adamant, however, that a legitimate constitution could not be written without first holding direct elections to provide a popular mandate for those who would draft it.

Under the previous policy, the governing council was required to furnish the UN Security Council with a timetable for a constitution and elections by December 15. This deadline looked increasingly unlikely to be met.

The new Bush plan provides for a transitional government to administer Iraq from July. Provincial committees composed of tribal, religious and business leaders will choose a provisional national assembly which, in turn, will appoint an executive and also act as a constitutional convention by electing 15 members to draft a constitution. Full representative elections will be held in late 2005. Further details, such as the mechanism for constitutional ratification, remain to be spelled out.

The US policy shift has attracted significant criticism. The new plan, it is said, will hand over government to the Iraqis prematurely, putting the fragile democratic program at risk and leaving Iraq vulnerable to the rise of a new dictator. Some critics believe the change is designed simply to bolster Bush's faltering domestic popularity by facilitating the withdrawal of US troops before the next presidential election.

Critics, however, should look less at the short-term motives and more at the lesson of history. No matter how democratic in its content, a constitution will not acquire the legitimacy that is critical to its ongoing operation and survival without a carefully staged process of drafting and adoption.

That process must be inclusive, measured and tailored to the particular national culture. Australians learnt this lesson more than 100 years ago, when our first, hasty attempt to adopt a constitution failed. A second attempt in the late 1890s, built around popular input and careful timing, produced an enduring constitution.

More recently, the South African example of a post-apartheid constitution demonstrates the value of transitional arrangements, as well as participatory and culturally appropriate processes.

A political deadlock between the ruling National Party and the African National Congress over the respective priority of holding elections or writing a constitution was broken in late 1991 by the adoption of a two-stage process. Instead of an outright transmission of power from the old order to the new, an interim government functioned under an interim constitution, agreed to by a multiparty negotiating forum.

After elections, the national legislature acted as the constitution-making body and drafted the final constitution within a given time. Extensive public education and a high degree of grassroots publicity and consultation were critical. Importantly, these processes contributed to a sense of popular ownership and attachment to the new order.

While Iraq may not have the luxury of time that Australia or South Africa enjoyed in building their new constitutions, it is crucial not to rush the process. In Afghanistan a nine-member constitutional drafting commission was appointed late last year with a deadline of March this year. This was an unrealistically short time for a country damaged by war and lacking a culture of democracy, and the constitution has only just been announced, nearly nine months late. Even then, it has been greeted with a degree of international scepticism as insufficiently authoritative to unify a new Afghanistan.

Constitutional legitimacy and stability are very much dependent on preparation. Constitution-making, as the South Africans learnt, can be transformational; it can contribute to stability and cohesion, and provides a vital national forum for contest and negotiation. The process must also be appropriately adapted to cultural and historic influences. The argument that a US-drafted arrangement was necessary because the Iraqis lacked democratic experience ignored this imperative. While democratic constitution-making does require expertise, it cannot be done merely by imposing the template of one system onto another.

Whatever its motives, this time the Bush Administration may have got things right.

Jolyon Ford teaches law at the University of Sydney and worked in public education at the introduction of South Africa's constitution. Helen Irving is associate professor in law at the University of Sydney.